Delhi High Court
Sh. Pritam Singh vs Satish & Anr. on 3 March, 2011
Author: S. L. Bhayana
Bench: S.L. Bhayana
IN THE HIGH COURT OF DELHI AT New Delhi
C.M (M) No.3/2010
Date of Decision:- 03.3.2011
Shri Pritam Singh ....... Petitioner
Through: Mr. S.S Saluja, counsel
for the petitioner.
Versus
Satish and Another .......Respondents
Through: Mr. S.L. Sharma, counsel
for respondent No.1.
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be
allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be referred in
the Digest? Yes
S. L. BHAYANA, J.
The present petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 3.4.3008 and the impugned order dated 5.10.2009 passed by the Trial Court, wherein application to conclude evidence of the petitioner has been dismissed.
2. The brief facts of this case are that the petitioner is the owner of the three shops and has filed the suit for permanent injunction against respondent No.1
3. The issues were framed on 4.11.2004 and the suit was fixed for evidence of the plaintiff from time to time. The evidence of the plaintiff by affidavit was tendered on 24.1.2007 and cross-examination of the C.M. (M) No. 3/2010 Page 1 of 3 witness has been deferred at the request of the counsel for defendant and the case was adjourned for cross-examination of the plaintiff on 17.4.2007 and the case was further adjourned to 30.8.2007 and 19.12.2007 for cross-examination of plaintiff.
4. Thereafter, the case was fixed for 3.4.2008 and on the date fixed the plaintiff was not present. Therefore, the Trial Judge had passed an order, closing evidence of the plaintiff and the case was fixed for evidence of the defendants for 17.7.2008.
5. Thereafter, the plaintiff filed an application under section 151 of Civil Procedure Code, 1908 for recalling the order dated 3.4.2008 closing evidence of the plaintiff. The Trial Court by the order dated 5.10.2009 dismissed the above said application.
6. I have heard the arguments advanced by the counsel for the parties and perused the record carefully. The contention of the petitioner herein is that his wife was ill on3.4.2008 due to which he could not appear before the court for his cross-examination therefore, one more opportunity should be given to the petitioner to conclude his evidence. On the other hand the counsel for the respondent has asserted that the petitioner has availed various opportunities to conclude his evidence but the petitioner has failed to do so, therefore, the Trial Court has rightly closed his evidence on 3.4.2008. Further counsel for the respondent has stated that the petitioner has filed the application for review of the order dated 3.4.2008 by filing an application on 17.7.2008 i.e. more than three months after passing of the above said order and that too has been dismissed by the Trial Court rightly on 5.10.2009.
C.M. (M) No. 3/2010 Page 2 of 3
7. In view of the submissions made by the learned counsel for the petitioner, it is ordered that subject to payment of costs of Rs. 20,000/- to the respondent/defendant the prayer of the petitioner to lead the evidence of the petitioner before the Trial Court is allowed and the impugned orders dated 3.4.2008 and 5.10.2009 are set aside. The Trial Court shall give two dates to the petitioner/plaintiff to lead his entire evidence, with these submissions the petition is disposed of.
8. Copy of the order be send to the Trial Court.
S.L. BHAYANA, J.
MARCH 03, 2011 C.M. (M) No. 3/2010 Page 3 of 3